SWITZERLAND Trends and Developments Contributed by: Paul Gully-Hart, Schellenberg Wittmer Ltd
requirement that sanctions must be effective, dissuasive and proportionate. Furthermore, issues have been raised as to the lack of trans - parency of the process. Indeed, if the SPO remains undisputed, there is no public trial or judicial review of any kind. The order itself is not made public either, although it may be con - sulted by authorised persons (such as journal - ists) upon request over a limited period of time (30 days). This means that the vast majority of SPOs are not disclosed to the public and few cases resolved by means of an SPO give rise to a press release. This has an impact on legal predictability. From a strategic perspective, SPOs may be an attractive option to defendants who wish to obtain a faster and more expeditious out - come, rather than facing lengthy proceedings and a heavily publicised trial. The fact that the defendant is not required to admit the underly - ing facts, provided that they can be established otherwise, may be appealing to defendants who wish to avoid any acknowledgement of crimi - nal liability. In the absence of clear guidance of the law itself, the prosecuting authority will have significant leeway in managing the process. For instance, some prosecutors will agree to draw up a statement of facts which will then be infor - mally reviewed and approved by the defendant. Others will adopt a more guarded approach which will not involve any interaction with the defendant. Furthermore, some prosecutors will agree to hold confidential discussions with the defendant and its legal team, although there is no legal obligation to do so. Swiss law also gives the prosecutor the possibil - ity of discontinuing the criminal proceedings, if the following requirements are met: • the offender admits the relevant facts;
• the offender has taken reasonable steps to repair the damage caused by its wrongdoing; and • there is no significant public interest or private interest of the victim warranting the prosecu - tion and trial of the defendant. Over the past few years, OFAG has taken a policy decision to refrain from using the repara - tion route in cases involving corruption or money laundering linked to a predicate offence of cor - ruption. This policy is predicated on the assump - tion that such cases will always go beyond the threshold of non-significant public interest. Switzerland has considered the option of creat - ing an instrument similar to a Deferred Prosecu - tion Agreement (DPA) with a view to incentivis - ing companies to self-report, to co-operate with law enforcement authorities and to improve their internal governance and compliance function. In August 2019, the Federal Council refused to consider further the bill proposed by the OFAG to incorporate this instrument into Swiss law. The government raised a number of objections, including the absence of an admission of guilt and the lack of an effective judicial control over the process. There is strong disagreement with this position on the ground. Legal practitioners and OFAG as well as the private sector and NGOs such as TI have all advocated the introduction of a proce - dural tool similar to the DPA or to the French Convention Judiciaire d’Intérêt Public (CJIP). There are strong arguments to support that approach. Currently, the most commonly used vehicle for a non-trial resolution of criminal charges against companies remains the SPO. However, the SPO amounts to a conviction
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